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2014 DIGILAW 947 (PNJ)

Pooja Deswal v. Sagar Deswal

2014-06-09

MAHAVIR S.CHAUHAN

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JUDGMENT Mr. Mahavir S. Chauhan, J.: - Heard. 2. Section 13-B in The Hindu Marriage Act, 1955 (for short, the Act) provides for termination of a connubial bond by mutual consent of the parties to such a relationship. It reads as under: “13-B Divorce by mutual consent. — (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.” 3. Can the statutory waiting period of six months referred to in subsection (2) of Section 13-B of the Act waived/ condoned by the Court?, is the precise question, to seek an answer to which this petition under Section 115 of the Code of Civil Procedure (Code, for short) has been brought by the petitioner, because the question has been answered in the negative by the Court of learned Additional District Judge, Panchkula (Trial Court, for short) vide order dated 23.05.2014 passed on an application brought by the present petitioner and her co-petitioner under Section 151 of the Code, which was brought by the parties to seek waiver of the staturtory waiting period of six months in a petition for dissolution of marriage of the parties to that petition by mutual consent under Section 13-B of the Act on the plea that marriage between the parties did not work owing to temperamental differences. In the application for condonation of period of six months, it was stated that the parties to the petition are quite young, have been living separately from each other for the last more than two years and both of them being well educated and mature have decided to determine the conjugal relationship after due deliberations and a series of mediations. Learned Trial Court dismissed the application vide order dated 23.05.2014 in view of the law laid down by the Hon’ble Supreme Court in Anil Kumar Jain v. Maya Jain, [2009(4) Law Herald (P&H) 3316 (SC) : 2009(6) Law Herald (SC) 3892] : AIR 2010 SC 229 : II (2009) DMC 449: JT 2009(14) SC 139:(2010)157 PLR 248: 2009(12) SCALE 115 : (2009)10 SCC 415 : [2009]14 SCR 90. 4. Learned counsel representing the petitioner craves an affirmative answer to the above-cited question and upsetting of the order dated 23.05.2014 on the strength of Amarjit Kaur vs. Bhupinder Singh, 2007(1) RCR(Civil) 834, Sonali and another vs. Nil, 2009(5) RCR(Civil) 529, Anamika Shrivastava vs. Vivek Shrivastava, 2009(5) RCR(Civil) 862 and order dated 04.02.2010 passed by a learned Single Judge of this Court in Civil Revision No. 7432 of 2009 (O&M), Parmodh Kumar vs. Meena, decided on 04.02.2010. 5. However, the question is no longer res integra. 6. The Act provides for dissolution of marriage by a decree of divorce but only on the grounds stated in Section 13 thereof. By virtue of subsequent events, as an exception, this strict rule has been liberalised by introduction of Section 13B in the Act whereby it is made possible to obtain a decree of divorce by mutual consent irrespective of the grounds indicated in Section 13 of the Act. But the parties are required to follow the procedure and satisfy the grounds spelt out under Section 13-B of the Act. (Mulla Hindu Law, Eighteenth Edition, Vol. 2 by Satyajeet A. Desai). 7. Provisions of Section 13-B of the Act are mandatory and the conditions precedent to the presentation of the petition set out therein have to be satisfied strictly. But the parties are required to follow the procedure and satisfy the grounds spelt out under Section 13-B of the Act. (Mulla Hindu Law, Eighteenth Edition, Vol. 2 by Satyajeet A. Desai). 7. Provisions of Section 13-B of the Act are mandatory and the conditions precedent to the presentation of the petition set out therein have to be satisfied strictly. Further, Section 14 of the Act prior to amendment of the Act by Marriage Laws (Amendment) Act, 1976 (for short ‘1976 Act’) had put a bar stating that notwithstanding anything contained in the Act, the courts shall not be competent to entertain any petition for dissolution of marriage by a decree of divorce unless the petition had been presented after a lapse of three years since the date of marriage. However, Proviso to Section 14(1) of the Act provided, by way of an exception, that a petition could be presented even before the expiry of the period of three years if circumstances of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent existed and in such cases the courts may, after hearing, pronounce a decree subject to the condition that the decree would not have effect until after the expiry of three years. In this backdrop and while amending the Act in the year 1976, the Legislature, while keeping the three of its aforesaid objects in mind, reduced the period from three years to one year and maintained the language of Section 14 as well as its Proviso otherwise intact. In other words, the Legislature did not alter or change the contents of ingredients of Section 14 except to the extent of reducing the period from three years to one year. By the 1976 Act, Section 14 of the Act was also amended and Section 13- B was introduced in the Act. The language of Section 13-B is clear and unambiguous. The Legislature in its wisdom did not introduce any relaxation in Section 13-B of the Act. There is nothing in the language of Section which can suggest that the provisions of Section 13-B of the Act are simplicitor procedurally directed and can be moulded by the court in exercise of its judicial discretion depending on the facts and circumstances of a case. This provision is intended to liberalise the provisions relating to divorce. There is nothing in the language of Section which can suggest that the provisions of Section 13-B of the Act are simplicitor procedurally directed and can be moulded by the court in exercise of its judicial discretion depending on the facts and circumstances of a case. This provision is intended to liberalise the provisions relating to divorce. The Legislature chose not to add any Proviso granting relaxation to the conditions imposed under Section 13B(1) and/or 13B(2) of the Act. It is a settled rule of interpretation that court while interpreting the statutory provisions would not add or subtract the words from a Section nor would it give meaning to the language of the Section other than what is intended on the plain reading of the provision. 8. A party to marriage approaching the Court under Section 13 of the Act is obliged to prove either of the grounds enumerated therein to entitle that party to a decree of divorce. However, Section 13B of the Act is an exception to the proceedings under any other provision before the court of competent jurisdiction for dissolution of marriage between the parties because in a petition under Section 13B of the Act there is no burden of proof on either of parties and the Court is granted power to dissolve the marriage between the parties by a decree of divorce on the ground of mutual consent. Nonetheless, as held by the Hon’ble Supreme Court in Smt. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904 , the “mutuality” must exist at the time of filing of the petition as well as at the time of passing of a decree. Under Section 13B of the Act Court can pass decree for divorce on mutual consent only upon satisfaction of the grounds stated therein and subject to the satisfaction of the period specified in law. The court has not been vested with any specific or even general power to condone or waive the period stipulated either under Section 13B(1) or under Section 13B(2) of the Act. The court has not been vested with any specific or even general power to condone or waive the period stipulated either under Section 13B(1) or under Section 13B(2) of the Act. The legislature in its wisdom has allowed the parties a limited right to seek divorce by mutual consent provided the parties present the petition in the court of competent jurisdiction on the ground that they have been living separately for a period of one year or more, they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Once such a petition is filed, the court has to satisfy itself of these requirements and thereafter, the parties are expected to take out a second motion which again has to be a joint motion but not earlier than six months and not later than 18 months of the first motion. Still the parties have to satisfy the court that the said petition was not withdrawn and the court is expected to record its satisfaction after hearing the parties and on making such enquiry as it thinks fit that the averments in the petition are true, court may pass a decree declaring the marriage to be dissolved on the ground of mutual consent. Apparently, the decree for divorce by mutual consent is dependent on fulfillment of the requirements afore-noticed and due satisfaction of the court. This cannot be termed as merely directory as the statute does not even impliedly indicate such intent of the legislature. The provision of a statute must be given its plain meaning and requirement of law stated under those provisions should be satisfied before the relief under the specific provision can be granted to the parties. Going by the rule of plain interpretation there is hardly any need for the court to either adopt stringently strict or unnecessarily liberal construction by subtraction or addition of words to the provisions of Section 13-B (1) & (2) of the Act. It must be given its ordinary plain meaning and enforced accordingly without unjust and unintended exceptions. The Maxim Ubi jus, ibi remedium is an accepted maxim in its application to the field of interpretative process of statute but equally true is the canon that every available remedy has to be invoked in accordance with the provision which provides for such remedy. The Maxim Ubi jus, ibi remedium is an accepted maxim in its application to the field of interpretative process of statute but equally true is the canon that every available remedy has to be invoked in accordance with the provision which provides for such remedy. Section 13-B of the Act lays down the basic requirements which must be fulfilled before invocation of the remedies specified. It also imposes a duty upon the Court to adhere to those stated requirements and there is hardly any occasion for the court to avoid the specified conditions. Just because the parties would have to wait for a period of six months from the date of presentation of the first motion, cannot be termed as hardship much less an undue hardship justifying avoidance of rule of plain interpretation. 9. Be that as it may, a Division Bench of this Court had an occasion to deal with the question of waiver of the statutory waiting period of six months in the case of Charanjit Singh Mann vs. Neelam Mann, [2006(2) Law Herald (P&H) 1247 (DB)] : AIR 2006 P&H 201 : (2006)143 PLR 851 and, after an in-depth analysis of the issue, the Division Bench ruled as under: “18. After a ruminated consideration of the point in issue, we are unable to persuade ourselves to agree with the learned Counsel for the appellant. The doctrine of ‘relation back’ being not of universal application, cannot be pressed into service to defeat a statutory provision or its object. The legislative scheme unfolds that occasion to observe the minimum and/or maximum waiting period envisaged under Sub-section (2) of Section 13-B of the Act would arise only when a joint petition in terms of Sub-section (1) thereof is presented before the court. Thus, if the theory of ‘relate back’ is applied in such like cases then the ‘waiting period’ will precede the presentation of a joint petition. Such a consequence being totally alien and contrary to the legislative intentment behind the afore-said provision, we reject the appellant’s contention that on conversion of his petition under Section 10 into under Section 13-B of the Act, the joint petition shall be deemed to have been filed on 15.4.1998. 19. Such a consequence being totally alien and contrary to the legislative intentment behind the afore-said provision, we reject the appellant’s contention that on conversion of his petition under Section 10 into under Section 13-B of the Act, the joint petition shall be deemed to have been filed on 15.4.1998. 19. At this stage, it may also be mentioned that in Ashok Hurra’s case (supra) as well as in the case of Smt. Swati Verma v. Rajan Verma, AIR 2004 SC 161, the Supreme Court while granting divorce by mutual consent waived off the waiting period provided in Sub-section (2) of Section 13-B of the Act by invoking its powers under Article 142 of the Constitution. The powers akin to Article 142 of the Constitution are concededly not enjoyed upon by the High Court while exercising its appellate jurisdiction.” 10. A Division Bench of Bombay High Court approached the issue in P rincipal Judge, Family Court V s. Nil, AIR 2009 Bom 12 , in the following manner: “21. Merely that the parties to the marriage would have to wait for a period of six months where they have the choice to live apart from each other and even live under the same roof without cohabitation, is certainly not a reason which can be termed as an undue hardship arising from the application of the provisions of Section 13B of the Act in its correct perspective. Any other interpretation is likely to defeat the legislative intent of protecting institution of marriage as well as granting opportunity to the parties to ponder over their decision with some seriousness and rethinking upon the pros and cons and consequences of their decision in moving the first motion. In the case in hand, the applicants have neither pleaded nor made out any case of hardship and/or undue hardship. 22. In our considered opinion, there is no occasion for the courts to exceed the limits of the specified jurisdiction and make exceptions to the application of law. Very strong and exceptional circumstances should exist before departure can be made from observance of law and that too such an interpretation should also be completely in line with legislative object and must not defeat public good or public policy. A communi observantia non est recedendum. Very strong and exceptional circumstances should exist before departure can be made from observance of law and that too such an interpretation should also be completely in line with legislative object and must not defeat public good or public policy. A communi observantia non est recedendum. (From common observance there should be no departure.) No compulsive grounds have been made out by the petitioners which can persuade the court to establish any exception to the rule of common observance to law. With respect, differing with the views taken by the other High Courts as well as the learned Single Judge of this Court in the case of Sou. Sonali, we would, in addition to the reasoning given in this judgment, concur with the view expressed by the Single Bench of this Court in Smt. Savitri’s case (supra) and particularly, the Division Bench judgment of Andhra Pradesh High Court in Hitesh N. Joshi’s case (supra). The Division Bench of Andhra Pradesh High Court after discussing the law in some detail stated that the time-frame of six months of wait has been set in the provision under Section 13B (2) with a definite purpose and object of giving time to the parties for introspection and reconciliation as it may be possible for the parties to reunite by setting aside their differences and when even they failed to do so, they are always free to file the second motion. Otherwise, there was no purpose or object for the Parliament to fix the period of 6 months as the minimum period and expanding it to the period of 18 months. 23. This reasoning needs to be re-emphasized in the light of the fact that Marriage under the Hindu Law is not a contract simplicitor. Once Section13B(2) stands as a valid piece of legislation on the statute book, it needs to be interpreted on its plain language and without any variation in as much as the Legislature has not vested the courts with any power to give away with the statutory period of six months under Section 13B(2). The legislative policy as reflected from the various provisions of the Hindu Marriage Act is to protect the institution of marriage and prevent decay of social values related to the institution of family. The legislative policy as reflected from the various provisions of the Hindu Marriage Act is to protect the institution of marriage and prevent decay of social values related to the institution of family. Of course, by amendments, the process for dissolving the marriage has been liberalised but essentially the liberalized process has to operate within the framework of the provisions which provide for such remedy. It can hardly be permissible that the statutory provisions should be moulded to suit the facts of each case and that too only on the ground of convenience of parties. In no case, the legislature has left the parties without remedy. As already noticed, Section 14 is a clear example of intention of legislature which allows the parties to file a petition for divorce even prior to the period of one year stated under Section 13 of the Act under exceptional circumstances. To expand the scope of specified jurisdiction of the court under the special statute by judicial pronouncement and that too to the extent that it will be opposed to the specific language of the provision would hardly be permissible.” 11. Hon’ble Supreme Court has put a full stop on the controversy whether a decree of divorce by mutual consent can be granted before the expiry of the period of six months after first motion, in Anil Kumar Jain v. Maya Jain (supra), by holding as under: “17. In the ultimate analysis the aforesaid discussion throws up two propositions. The first proposition is that although irretrievable break-down of marriage is not one of the grounds indicated whether under Sections 13 or 13B of the Hindu Marriage Act, 1955, for grant of divorce, the said doctrine can be applied to a proceeding under either of the said two provisions only where the proceedings are before the Supreme Court. In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13B of the Hindu Marriage Act, 1955. 18. The second proposition is that although the Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under Section 13 of the Hindu Marriage Act, 1955, into one under Section 13B and pass a decree for mutual divorce, without waiting for the statutory period of six months, none of the other Courts can exercise such powers. The other Courts are not competent to pass a decree for mutual divorce if one of the consenting parties withdraws his/her consent before the decree is passed. Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when the petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme Court, which, in exercise of its extraordinary powers under Article 142of the Constitution, can pass orders to do complete justice to the parties. 19. The various decisions referred to above merely indicate that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given fact situation by invoking its powers under Article 142 of the Constitution, but in normal circumstances the provisions of the statute have to be given effect to. The law as explained in Smt. Sureshta Devi’s case (supra) still holds good, though with certain variations as far as the Supreme Court is concerned and that too in the light of Article 142 of the Constitution.” 12. The position of law as adumbrated in Anil Kumar Jain vs. Maya Jain (Supra) has been reiterated in Manish Goel vs. Rohini Goel, [2010(2) Law Herald (SC) 1088 : 2010(2) Marr.L.J. 577 (SC)] : 2010(2) RCR (Civil) 194. 13. The position of law as adumbrated in Anil Kumar Jain vs. Maya Jain (Supra) has been reiterated in Manish Goel vs. Rohini Goel, [2010(2) Law Herald (SC) 1088 : 2010(2) Marr.L.J. 577 (SC)] : 2010(2) RCR (Civil) 194. 13. In view of the above, the question posed in the beginning is answered in the negative and the impugned order passed by the learned Additional District Judge, Panchkula, is found to call for no interference. Resultantly, the revision petition fails and is dismissed. ---------0.B.S.0------------ —————————